The Virginia Supreme Court heard arguments from both sides in the redistricting debate Monday morning. The issues likely to be the deciding factors in the case are whether early voting starts the election process and whether the special session used to initiate the amendment process was legal.
To amend the Constitution, the General Assembly must pass the language twice, with an intervening House of Delegates election. The General Assembly used an already active special session to meet at the end of October last year to complete the first passage of the amendment language, just days before Election Day in November.
Republicans argue that the election started when the early voting period began 45 days prior to Election Day. Democrats argued that the votes are not counted until Election Day.
Republican attorneys cite three reasons they believe the amendment is invalid.
First, they said lawmakers improperly used an ongoing special session to pass the amendment the first time. They argued that special sessions are limited in scope and meant for specific purposes — in this case, budget matters — and that legislators could not use it to advance a redistricting amendment.
The special session that Democrats used last year to advance the redistricting proposal was originally called in 2024 to address budget issues. The scope was changed in October of 2025 to include redistricting.
“You don’t disagree that the General Assembly didn’t follow the terms of the resolution for expanding the argument is, as a legal matter under Article Four, Section Seven. It’s irrelevant that they didn’t follow that?” asked Justice Wesley Russell.
“That principle is firmly rooted in law,” responded Matthew Seligman, the attorney for the Democrats.
“And that’s a yes,” Russell stated.
“That is a yes,” Seligman said. “But to be precise, first of all, there are two points here, one about judicial power, and the second about compliance with legislative rules.”
“First about judicial power,” Seligman continued. “This court does not have the power to enforce alleged violations of legislative rules. That principle has been established by the United States Supreme Court and has been established by this court and state courts around the country.”
“I think that’s a compelling argument on how the legislature, by majority vote, sets up its own rules,” Justice Stephen McCullough said in response. “The more tricky and in my mind, unprecedented aspect of that question is the idea of a sort of perpetual special session, when the Constitution envisions a citizen legislature that’s part time, that meets at prescribed time periods, and we’re writing on a blank canvas on that question. And so to me, that was the argument that had more layers to it than the one you were just immediately addressing.”
“It’s true that this court has never addressed it, but I think the text of the Constitution answers that question,” Seligman responded.
Russell then focused on the 2025 legislative session and described a special session as something that happens outside of the general session.
“Special Session [by] definition is something that happens outside of the general session,” Russell said. “If we’ve been in special session and we get around to another general session…why doesn’t the general end the special?”
“What authority do you have for that proposition other than constitutional silence?” he asked the Democratic attorney.
“I think the constitutional silence is telling, and that constitutional silence exists not only in contrast to other sentences in the very same section of the Constitution, but also in contrast to every single, and I repeat, every single other state’s constitution that the challengers rely on here,” Seligman said.
“Would a special session convened in 1929, if they forgot to adjourn sine die, still be in session?” Russell asked.
“No, Your Honor,” Seligman responded. “And I think there’s some important distinction here, and this is reflected both in the Virginia Legislature and also in Congress and other states’ legislatures. So any open sessions at the end of the term of office of the members of the General Assembly here or Congress, it automatically terminates.”
Second, challengers argued there was no valid “intervening general election” between the first and second legislative approvals because early voting for the 2025 House elections had already begun before the amendment first passed.
“Recognizing the text is most important,” Russell said. “If you look at the General Assembly debates over the 1971 Constitution, didn’t at least a few of the members say that the reason we have the intervening election requirement is so people will know when they vote how incumbent members voted and allow their opponents to say they would have voted differently. That’s what they said on the floor.”
“I don’t think that statements by individual legislators can overcome the clear text of the Constitution,” Seligman said in response.
The Democratic argument is that since the votes are not actually counted until Election Day, early voting does not violate the intervening election requirement.
“You would say doing it on election day itself, anytime before the polls closed, might be valid?” Russell asked.
“I think probably not,” Seligman responded. “The point I’m just trying to make here is that that’s not the case that we have here. The case that we have here is the General Assembly passed the proposed amendment before the election, where the term election is defined in the Constitution by five separate provisions, as a single day that takes place in November.”
“So Article Two, Section six, defines the election as the November general election. That is an election that takes place in November, not over a three month period,” Seligman continued, before Russell interrupted him.
“That doesn’t, because the phrase in Article 12, Section One, is the next general election, and Article Two, Section Six, it’s that’s when the members of the House shall be elected,” Russell said. “It’s not the same phrase, it’s not the same word, it’s not even the same type of speech. One is a noun. One is a verb.”
“What is inconsistent with interpreting election as describing the process and saying shall be elected is, by definition, the termination of that process by which the members are elected,” Russell continued. “And in fact, the verb is passive. Somebody else has to do something for them to be elected. That is, the voters have to vote.”
“The textual answer is that we have other provisions of the Constitution that answer directly this point,” Seligman responded. “So Article Seven, Section Four, says regular elections for such officers — this is local and county officers — regular elections for such officers shall be held on Tuesday after the first Monday in November. And so that answers exactly the grammatical point that you’re making here, and that speaks to the broader structural point that I’ll make.”
“Second, which is that we have a coherent structure across multiple provisions of the Constitution that the election takes place on a single day, that takes place in November, assuming it’s a general election, and there can be early voting that participates early in that election that takes place on a single day,” Seligman continued.
“So your position requires us to interpret election in such a manner that literally, every single vote that is cast for whatever the office is, is cast before the election even begins,” Russell asked.
“Yes, Your Honor,” Seligman responded. “The contrary interpretation would make Virginia a sole outlier.”
Third, opponents said the state failed to follow a statute requiring public notice of proposed amendments 90 days before the intervening election in circuit courts
The justices who asked questions did not seem to give much credibility to this argument, pointing out that one rogue circuit court clerk could refuse to post the amendment and stop it in its tracks.
“It would strike me as pretty extreme for us to say that one rogue circuit court clerk just refusing to post it on a courthouse wall stops the entire commonwealth from ever considering a constitutional amendment, and that would essentially give a circuit court clerk veto power over amending the Constitution. Isn’t that too extreme?” one of the justices asked the Republican attorney, Thomas McCarthy.
“This is not at all like that. This isn’t like one circuit clerk somewhere in the commonwealth only put it up 48 days ahead of time, or something like that,” he responded. “It was never posted.”
The justices’ decision will determine whether the amendment approved by voters becomes part of the Virginia Constitution.
There is no timeline for when a decision will be released.